updated 06:29 pm EDT, Tue October 1, 2013

Appeal lengthens already extremely drawn out invalidation process

Earlier today, Apple filed an appeal with the US Court of Appeals for the Federal Circuit regarding a decision by the US Patent and Trade Office over its '90s-era "data tapping" patent that it has asserted in many of its smartphone patent trials. Apple is seeking the broadest possible interpretation of the patent, and is fighting invalidation based on "anonymous" requests to have the patent's uniqueness re-evaluated in 2010.

The patent relates to contextual operations that a computing device, in most cases asserted with this patent a smart phone, can take when the user selects a piece of data. The data is examined, and URLs are sent to a browser, with phone numbers sent to the dialer, among other actions.

Patent analyst Florian Mueller has examined the issue and history in some depth. He states that "the aforementioned ex parte reexamination that I believe resulted from an initiative taken by Nokia, HTC or Google resulted in the USPTO's rejection of claims 13 and 15-31. In June, the Patent Trial and Appeals Board (formerly called Board of Patent Appeals and Interferences) affirmed this rejection against an appeal by Apple. Today Apple has appealed the USPTO ruling to the Federal Circuit."

Apple's appeal is part of the normal patent re-examination process, which can take many years to resolve. The Federal Circuit won't rule on this case until some time in late 2014, and even that ruling won't be final, pending ITC action on the ruling and the patent's invalidation hearings still yet to happen before administrative law judges, with Apple suggesting in its new smartphone patent lawsuit against Samsung that any true invalidation won't happen until 2017 at the earliest.

Once a patent is granted, ruled 100% valid by the USPTO, that should be "it". Apple (and others) act in good faith. They should not be held responsible for the incompetence of the USPTO. Indeed, if a patent is granted and then held in dispute, the USPTO should be held 100% responsible, legally and financially.